One of the most stressful aspects of separation or divorce for parents is the financial stress that comes with it. While the process of separation or divorce in and of itself can be costly, so can the outcomes, which can include a division of property, spousal support, and child support. A recent decision from the Ontario Superior Court of Justice shows that even when someone has a low income and providing support can be difficult, it’s a responsibility that is difficult to escape.
Parenting plan is put in place
The parents involved in the matter have a child who was born in 2012. The child has been residing primarily with the father since October 2020. The father brought the motion requesting the court to order that the mother pay child support on an ongoing basis as well as unpaid support that is in arrears. He also wanted to be identified as the child’s primary decision-maker.
The mother’s position was that paying child support would be a financial hardship for her, though she agreed with the father having day-to-day decision-making with regard to their child.
Looking at the financial circumstances of the parents
When it comes to child support, the primary factor in determining how much is owed by one parent is the amount of income each parent earns as well as the number of children they share.
The mother, who has seven children, provided tax information that said she had an annual income of $22,500. She also receives $13,860 per year in benefits. Finally, she indicated that she has monthly expenses of $22,524.
She stated that three of her children live with her full-time while the other four live with her every weekend or every other weekend. She said she is in debt to the amount of $13,480 and sometimes has to choose which bills to pay on a monthly basis.
The father’s financial statement indicated he had been unemployed since March 2019, but through social assistance and benefits, he had an income of $2997 per month.
Court refers to Child Support Guidelines
The court began its analysis by stating that the applicable law regarding child support is found in the Child Support Guidelines. Generally speaking, a parent’s income is the determining factor in setting out child support. However, the guidelines do list circumstances that may have caused undue hardship, including the need for a paying parent to support another child (or children).
The court added that undue hardship cannot be claimed for financial reasons as not paying child support would leave the would-be payer enjoying a higher standard of living than the would-be recipient.
The test for claiming undue hardship was recently summarized in a 2021 decision, which laid out the following steps:
- The person making the claim must show that there are circumstances that could create undue hardship. The hardship must be “exceptional, excessive or disproportionate, not merely awkward or inconvenient”. The term has also been interpreted to mean “excessive, extreme, improper, unreasonable, unjustified” and as “excessively hard living conditions”;
- If this is the case, the person making the claim must show that his or her standard of living is lower than that of the responding party’s; and,
- If the first two parts of the test are made out, the court has the discretion to make a support order different than the table amount, based on the means, needs and circumstances of the parties. But the court also retains the discretion to refuse a reduction in the table amount even if the first two parts are made out.
In this case, the court found that not enough evidence was provided to the court, particularly how much the mother receives in tax credits on a monthly-basis. Without that information, the court was left to rely on the guidelines, ordering the mother to pay $179.90 per month in support.